Mr. Smith of Texas
(for himself, Mr. Calvert,
Mr. Gallegly,
Mr. Chaffetz,
Mr. Bilbray,
Mr. Royce,
Mr. Gary G. Miller of California,
Mrs. Myrick,
Mr. Sensenbrenner,
Mr. Franks of Arizona,
Mr. Carter,
Mr. Kingston,
Mr. Daniel E. Lungren of California,
and Mr. Goodlatte) introduced the
following bill; which was referred to the Committee on the Judiciary, and in
addition to the Committees on Education
and the Workforce and Ways and Means, for a period to be
subsequently determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee
concerned

A BILL

To amend the Immigration and Nationality Act to make
mandatory and permanent requirements relating to use of an electronic
employment eligibility verification system, and for other
purposes.

1.

Short title

This Act may be cited as the
Legal Workforce
Act.

2.

Employment
eligibility verification process

Section 274A(b) of the
Immigration and Nationality Act (8
U.S.C. 1324a(b)) is amended to read as follows:

(b)

Employment
eligibility verification process

(1)

New hires,
recruitment, and referral

The
requirements referred to in paragraphs (1)(B) and (3) of subsection (a) are, in
the case of a person or other entity hiring, recruiting, or referring an
individual for employment in the United States, the following:

(A)

Attestation
after examination of documentation

(i)

Attestation

During the verification period (as defined
in subparagraph (F)), the person or entity shall attest, under penalty of
perjury and on a form, including electronic and telephonic formats, designated
or established by the Secretary by regulation not later than 6 months after the
date of the enactment of the Legal Workforce Act, that it has verified that the
individual is not an unauthorized alien by—

(I)

obtaining from the
individual the individual’s social security account number and recording the
number on the form (if the individual claims to have been issued such a
number), and, if the individual does not attest to United States citizenship
under subparagraph (B), obtaining such identification or authorization number
established by the Department of Homeland Security for the alien as the
Secretary of Homeland Security may specify, and recording such number on the
form; and

(II)

examining—

(aa)

a document described in clause (ii);
or

(bb)

a document described in clause (iii) and a
document described in clause (iv).

in the case of a nonimmigrant alien
authorized to work for a specific employer incident to status, a foreign
passport with Form I–94 or Form I–94A bearing the same name as the passport and
containing as endorsement of the alien’s nonimmigrant status, as long as the
period of endorsement has not yet expired and the proposed employment is not in
conflict with any restrictions or limitations identified on the form;

(V)

passport from the Federated States of
Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I–94
or Form I–94A indicating nonimmigrant admission under the Compact of Free
Association Between the United Sates and the FSM or RMI; or

(VI)

other document
designated by the Secretary of Homeland Security, if the document—

(aa)

contains a photograph of the individual and
biometric identification data from the individual and such other personal
identifying information relating to the individual as the Secretary of Homeland
Security finds, by regulation, sufficient for purposes of this clause;

(bb)

is
evidence of authorization of employment in the United States; and

(cc)

contains security
features to make it resistant to tampering, counterfeiting, and fraudulent
use.

(iii)

Documents
evidencing employment authorization

A document described in this subparagraph
is an individual's social security account number card (other than such a card
which specifies on the face that the issuance of the card does not authorize
employment in the United States).

(iv)

Documents
establishing identity of individual

A document described in this
subparagraph is—

(I)

an individual's unexpired State issued
driver’s license or identification card if it contains a photograph and
information such as name, date of birth, gender, height, eye color, and
address;

(II)

an individual's unexpired U.S. military
identification card;

(III)

an individual's unexpired Native American
tribal identification document; or

(IV)

in the case of an individual under 18 years
of age, a parent or legal guardian’s attestation under penalty of law as to the
identity and age of the individual.

(v)

Authority to
prohibit use of certain documents

If the Secretary of Homeland
Security finds, by regulation, that any document described in clause (i), (ii),
or (iii) as establishing employment authorization or identity does not reliably
establish such authorization or identity or is being used fraudulently to an
unacceptable degree, the Secretary may prohibit or place conditions on its use
for purposes of this paragraph.

(vi)

Signature

Such attestation may be manifested by
either a hand-written or electronic signature.

(B)

Individual
attestation of employment authorization

(i)

In
general

During the
verification period (as defined in subparagraph (F)), the individual shall
attest, under penalty of perjury on the form designated or established for
purposes of subparagraph (A), that the individual is a citizen or national of
the United States, an alien lawfully admitted for permanent residence, or an
alien who is authorized under this Act or by the Secretary of Homeland Security
to be hired, recruited, or referred for such employment. Such attestation may
be manifested by either a hand-written or electronic signature. The individual
shall also provide that individual’s social security account number (if the
individual claims to have been issued such a number), and, if the individual
does not attest to United States citizenship under this subparagraph, such
identification or authorization number established by the Department of
Homeland Security for the alien as the Secretary may specify.

(ii)

Criminal
penalty

(I)

Offenses

Any individual who, pursuant to clause (i),
provides a social security account number or an identification or authorization
number established by the Secretary of Homeland Security that belongs to
another person, knowing that the number does not belong to the individual
providing the number, shall be fined under title 18, United States Code,
imprisoned not less than 1 year and not more than 15 years, or both. Any
individual who, pursuant to clause (i), provides, during and in relation to any
felony violation enumerated in section 1028A(c) of title 18, United States
Code, a social security account number or an identification or authorization
number established by the Secretary of Homeland Security that belongs to
another person, knowing that the number does not belong to the individual
providing the number, in addition to the punishment provided for such felony,
shall be fined under title 18, United States Code, imprisoned for a term of 2
years, or both.

(II)

Consecutive
sentence

Notwithstanding any other provision of law—

(aa)

a
court shall not place on probation any individual convicted of a violation of
this clause;

(bb)

except as
provided in item (dd), no term of imprisonment imposed on an individual under
this section shall run concurrently with any other term of imprisonment imposed
on the individual under any other provision of law, including any term of
imprisonment imposed for the felony enumerated in section 1028A(c) of title 18,
United States Code, during which the violation of this section occurred;

(cc)

in
determining any term of imprisonment to be imposed for the felony enumerated in
section 1028A(c) of title 18, United States Code, during which the violation of
this clause occurred, a court shall not in any way reduce the term to be
imposed for such crime so as to compensate for, or otherwise take into account,
any separate term of imprisonment imposed or to be imposed for a violation of
this clause; and

(dd)

a
term of imprisonment imposed on an individual for a violation of this clause
may, in the discretion of the court, run concurrently, in whole or in part,
only with another term of imprisonment that is imposed by the court at the same
time on that individual for an additional violation of this clause, except that
such discretion shall be exercised in accordance with any applicable guidelines
and policy statements issued by the United States Sentencing Commission
pursuant to section 994 of title 28, United States Code.

(C)

Retention of
verification form and verification

(i)

In
general

After completion of such form in accordance with
subparagraphs (A) and (B), the person or entity shall—

(I)

retain a paper,
microfiche, microfilm, or electronic version of the form and make it available
for inspection by officers of the Department of Homeland Security, the Special
Counsel for Immigration-Related Unfair Employment Practices, or the Department
of Labor during a period beginning on the date of the hiring, recruiting, or
referral of the individual and ending—

(aa)

in
the case of the recruiting or referral of an individual, 3 years after the date
of the recruiting or referral; and

(bb)

in the case of the hiring of an individual,
the later of 3 years after the date of such hire or one year after the date the
individual’s employment is terminated; and

(II)

during the verification period (as defined
in subparagraph (F)), make an inquiry, as provided in subsection (d), using the
verification system to seek verification of the identity and employment
eligibility of an individual.

(ii)

Verification

(I)

Verification
received

If the person or other entity receives an appropriate
verification of an individual’s identity and work eligibility under the
verification system within the time period specified, the person or entity
shall record on the form an appropriate code that is provided under the system
and that indicates a final verification of such identity and work eligibility
of the individual.

(II)

Tentative
nonverification received

If
the person or other entity receives a tentative nonverification of an
individual’s identity or work eligibility under the verification system within
the time period specified, the person or entity shall so inform the individual
for whom the verification is sought. If the individual does not contest the
nonverification within the time period specified, the nonverification shall be
considered final. The person or entity shall then record on the form an
appropriate code which has been provided under the system to indicate a
tentative nonverification. If the individual does contest the
non­ver­i­fi­ca­tion, the individual shall utilize the process for secondary
verification provided under subsection (d). The nonverification will remain
tentative until a final verification or non­ver­i­fi­ca­tion is provided by the
verification system within the time period specified. In no case shall an
employer terminate employment of an individual because of a failure of the
individual to have identity and work eligibility confirmed under this section
until a nonverification becomes final. Nothing in this clause shall apply to a
termination of employment for any reason other than because of such a failure.
In no case shall an employer rescind the offer of employment to an individual
because of a failure of the individual to have identity and work eligibility
confirmed under this subsection until a nonconfirmation becomes final. Nothing
in this subclause shall apply to a recission of the offer of employment for any
reason other than because of such a failure.

(III)

Final
verification or nonverification received

If a final verification
or nonverification is provided by the verification system regarding an
individual, the person or entity shall record on the form an appropriate code
that is provided under the system and that indicates a verification or
nonverification of identity and work eligibility of the individual.

(IV)

Extension of
time

If the person or other entity in good faith attempts to make
an inquiry during the time period specified and the verification system has
registered that not all inquiries were received during such time, the person or
entity may make an inquiry in the first subsequent working day in which the
verification system registers that it has received all inquiries. If the
verification system cannot receive inquiries at all times during a day, the
person or entity merely has to assert that the entity attempted to make the
inquiry on that day for the previous sentence to apply to such an inquiry, and
does not have to provide any additional proof concerning such inquiry.

(V)

Consequences of
nonverification

(aa)

Termination or
notification of continued employment

If the person or other
entity has received a final nonverification regarding an individual, the person
or entity may terminate employment of the individual (or decline to recruit or
refer the individual). If the person or entity does not terminate employment of
the individual or proceeds to recruit or refer the individual, the person or
entity shall notify the Secretary of Homeland Security of such fact through the
verification system or in such other manner as the Secretary may
specify.

(bb)

Failure to
notify

If the person or entity fails to provide notice with
respect to an individual as required under item (aa), the failure is deemed to
constitute a violation of subsection (a)(1)(A) with respect to that
individual.

(VI)

Continued
employment after final nonverification

If the person or other
entity continues to employ (or to recruit or refer) an individual after
receiving final non­ver­i­fi­ca­tion, a rebuttable presumption is created that
the person or entity has violated subsection (a)(1)(A).

(D)

Continuation of
seasonal agricultural employment

An individual shall not be considered a new
hire subject to verification under this paragraph if the individual is engaged
in seasonal agricultural employment and is returning to work for an employer
that previously employed the individual.

(E)

Effective dates
of new procedures

(i)

Hiring

Except
as provided in clause (iii), the provisions of this paragraph shall apply to a
person or other entity hiring an individual for employment in the United States
as follows:

(I)

With respect to employers having 10,000 or
more employees in the United States on the date of the enactment of the Legal
Workforce Act, on the date that is 6 months after the date of the enactment of
such Act.

(II)

With respect to employers having 500 or
more employees in the United States, but less than 10,000 employees in the
United States, on the date of the enactment of the Legal Workforce Act, on the
date that is 12 months after the date of the enactment of such Act.

(III)

With respect to employers having 20 or more
employees in the United States, but less than 500 employees in the United
States, on the date of the enactment of the Legal Workforce Act, on the date
that is 18 months after the date of the enactment of such Act.

(IV)

With respect to employers having 1 or more
employees in the United States, but less than 20 employees in the United
States, on the date of the enactment of the Legal Workforce Act, on the date
that is 24 months after the date of the enactment of such Act.

(ii)

Recruiting and
referring

Except as provided
in clause (iii), the provisions of this paragraph shall apply to a person or
other entity recruiting or referring an individual for employment in the United
States on the date that is 12 months after the date of the enactment of the
Legal Workforce Act.

(iii)

Agricultural
labor or services

With respect to an employee performing
agricultural labor or services (as defined for purposes of section
101(a)(15)(H)(ii)(a)), this paragraph shall not apply with respect to the
verification of the employee until the date that is 36 months after the date of
the enactment of the Legal Workforce Act. An employee described in this clause
shall not be counted for purposes of clause (i).

(iv)

Transition
rule

Subject to paragraph
(4), the following shall apply to a person or other entity hiring, recruiting,
or referring an individual for employment in the United States until the
effective date or dates applicable under clauses (i) through (iii):

(I)

This subsection,
as in effect before the enactment of the Legal Workforce Act.

(II)

Subtitle A of
title IV of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (8 U.S.C. 1324a note), as in effect before the effective date in section
7(c) of the Legal Workforce Act.

(III)

Any other provision of Federal law
requiring the person or entity to participate in the E-Verify Program described
in section 403(a) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note), as in effect before the
effective date in section 7(c) of the Legal Workforce Act, including Executive
Order 13465 (8 U.S.C. 1324a note; relating to Government procurement).

(F)

Verification
period defined

(i)

In
general

For purposes of this
paragraph:

(I)

In the case of
recruitment or referral, the term verification period means the
period ending on the date recruiting or referring commences.

(II)

In the case of
hiring, the term verification period means the period beginning on
the date on which an offer of employment is extended and ending on the date
that is 3 business days after the date of hiring. The offer of employment may
be conditioned in accordance with clause (ii).

(ii)

Job offer may
be conditional

A person or other entity may offer a prospective
employee an employment position that is conditioned on final verification of
the identity and employment eligibility of the employee using the procedures
established under this paragraph.

(2)

Reverification
for individuals with limited work authorization

(A)

In
general

Except as provided in
subparagraph (B), a person or entity shall make an inquiry, as provided in
subsection (d), using the verification system to seek re­ver­i­fi­ca­tion of
the identity and employment eligibility of all individuals with a limited
period of work authorization employed by the person or entity during the 30-day
period ending on the date the employee's work authorization expires as
follows:

(i)

With respect to employers having 10,000 or
more employees in the United States on the date of the enactment of the Legal
Workforce Act, beginning on the date that is 6 months after the date of the
enactment of such Act.

(ii)

With respect to employers having 500 or
more employees in the United States, but less than 10,000 employees in the
United States, on the date of the enactment of the Legal Workforce Act,
beginning on the date that is 12 months after the date of the enactment of such
Act.

(iii)

With respect to employers having 20 or more
employees in the United States, but less than 500 employees in the United
States, on the date of the enactment of the Legal Workforce Act, beginning on
the date that is 18 months after the date of the enactment of such Act.

(iv)

With respect to employers having 1 or more
employees in the United States, but less than 20 employees in the United
States, on the date of the enactment of the Legal Workforce Act, beginning on
the date that is 24 months after the date of the enactment of such Act.

(B)

Agricultural
labor or services

With
respect to an employee performing agricultural labor or services (as defined
for purposes of section 101(a)(15)(H)(ii)(a)), subparagraph (A) shall not apply
with respect to the reverification of the employee until the date that is 36
months after the date of the enactment of the Legal Workforce Act. An employee
described in this subparagraph shall not be counted for purposes of
subparagraph (A).

(C)

Reverification

Paragraph (1)(C)(ii) shall apply to
reverifications pursuant to this paragraph on the same basis as it applies to
verifications pursuant to paragraph (1), except that employers shall—

(i)

use a form
designated or established by the Secretary by regulation for purposes of this
paragraph in lieu of the verification form under paragraph (1); and

(ii)

retain a paper, microfiche, microfilm, or
electronic version of the form and make it available for inspection by officers
of the Department of Homeland Security, the Special Counsel for
Immigration-Related Unfair Employment Practices, or the Department of Labor
during the period beginning on the date the reverification commences and ending
on the date that is the later of 3 years after the date of such reverification
or 1 year after the date the individual’s employment is terminated.

(D)

Notice

The Secretary of Homeland Security shall
notify a person or entity employing a person with limited work authorization of
the date on which the limited work authorization expires.

(3)

Previously hired
individuals

(A)

On a mandatory
basis for certain employees

(i)

In
general

Not later than the
date that is 6 months after the date of the enactment of the Legal Workforce
Act, an employer shall make an inquiry, as provided in subsection (d), using
the verification system to seek verification of the identity and employment
eligibility of any individual described in clause (ii) employed by the employer
whose employment eligibility has not been verified under the E-Verify Program
described in section 403(a) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note).

(ii)

Individuals
described

An individual
described in this clause is any of the following:

(I)

An employee of any
unit of a Federal, State, or local government.

(II)

An employee who requires a Federal security
clearance working in a Federal, State or local government building, a military
base, a nuclear energy site, a weapons site, or an airport or other facility
that requires workers to carry a Transportation Worker Identification
Credential (TWIC).

(III)

An employee assigned to perform work in the
United States under a Federal or State contract, except that this
subclause—

(aa)

is
not applicable to individuals who have a clearance under Homeland Security
Presidential Directive 12 (HSPD 12 clearance), are administrative or overhead
personnel, or are working solely on contracts that provide Commercial Off The
Shelf goods or services as set forth by the Federal Acquisition Regulatory
Council, unless they are subject to verification under subclause (II);
and

(bb)

only applies to
contacts over the simple acquisition threshold.

(B)

On a mandatory
basis for multiple users of same social security account number

In the case of an employer who is required
by this subsection to use the verification system described in subsection (d),
or has elected voluntarily to use such system, the employer shall make
inquiries to the system in accordance with the following:

(i)

The Commissioner of Social Security shall
notify annually employees (at the employee address listed on the Wage and Tax
Statement) who submit a social security account number to which more than one
employer reports income and for which there is a pattern of unusual multiple
use. The notification letter shall identify the number of employers to which,
and the States in which, income is being reported as well as sufficient
information notifying the employee of the process to contact the Social
Security Administration Fraud Hotline if the employee believes the employee’s
identity may have been stolen. The notice shall not share information protected
as private, in order to avoid any recipient of the notice being in the position
to further identity theft.

(ii)

If the person to whom the social security
account number was issued by the Social Security Administration has been
identified and confirmed by Commissioner, and indicates that the social
security account number was used without their knowledge, the Secretary and the
Commissioner shall lock the social security account number for employment
eligibility ver­i­fi­ca­tion purposes and shall notify the employers of the
individuals who wrongfully submitted the social security account number that
the employee may not be work eligible.

(iii)

Each employer receiving such notification
of invalid social security account number shall use the verification system
described in subsection (d) to check the work eligibility status of the
applicable employee within 10 business days of receipt of the notification of
invalid social security account number under clause (ii).

(C)

On a mandatory
basis for certain mismatched wage and tax statements

(i)

In
general

In the case of an
employer who is required by this subsection to use the verification system
described in subsection (d), or has elected voluntarily to use such system, and
who receives a notice described in clause (ii) identifying an individual
employee, the employer shall, not later than 30 calendar days after receipt of
such notice, use the verification system described in subsection (d) to verify
the employment eligibility of the employee in accordance with the instructions
in such notice if the individual is still on the payroll of the
employer.

(ii)

Notice

The
Commissioner of Social Security shall issue a notice to an employer submitting
one or more mismatched wage and tax statements or corrected wage and tax
statements containing the following:

(I)

A description of
the mismatched information.

(II)

An explanation of
the steps that the employer is required to take to correct the mismatched
information.

(III)

An explanation
of the employment eligibility verification requirement described in clause
(i).

(D)

On a voluntary
basis

Subject to paragraph
(2), and subparagraphs (A) through (C) of this paragraph, beginning on the date
that is 30 days after the date of the enactment of the Legal Workforce Act, an
employer may make an inquiry, as provided in subsection (d), using the
verification system to seek verification of the identity and employment
eligibility of any individual employed by the employer. If an employer chooses
voluntarily to seek verification of any individual employed by the employer,
the employer shall seek verification of all individuals so employed. An
employer’s decision about whether or not voluntarily to seek verification of
its current workforce under this subparagraph may not be considered by any
government agency in any proceeding, investigation, or review provided for in
this Act.

(E)

Verification

Paragraph (1)(C)(ii) shall apply to
verifications pursuant to this paragraph on the same basis as it applies to
verifications pursuant to paragraph (1), except that employers shall—

(i)

use a form
designated or established by the Secretary by regulation for purposes of this
paragraph in lieu of the verification form under paragraph (1); and

(ii)

retain a paper, microfiche, microfilm, or
electronic version of the form and make it available for inspection by officers
of the Department of Homeland Security, the Special Counsel for
Immigration-Related Unfair Employment Practices, or the Department of Labor
during the period beginning on the date the verification commences and ending
on the date that is the later of 3 years after the date of such verification or
1 year after the date the individual’s employment is terminated.

(4)

Early
compliance

(A)

Former E-Verify
required users, including Federal contractors

Notwithstanding the deadlines in paragraphs
(1) and (2), beginning on the earlier of the date that is 6 months after the
date of the enactment of the Legal Workforce Act and the date on which the
Secretary implements the system under subsection (d), the Secretary is
authorized to commence requiring employers required to participate in the
E–Verify Program described in section 403(a) of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), including
employers required to participate in such program by reason of Federal
acquisition laws (and regulations promulgated under those laws, including the
Federal Acquisition Regulation), to commence compliance with the requirements
of this subsection (and any additional requirements of such Federal acquisition
laws and regulation) in lieu of any requirement to participate in the E-Verify
Program.

(B)

Former E-Verify
voluntary users and others desiring early
compliance

Notwithstanding the deadlines in paragraphs (1) and
(2), beginning 30 days after the date of the enactment of the Legal Workforce
Act, the Secretary shall provide for the voluntary compliance with the
requirements of this subsection by employers voluntarily electing to
participate in the E–Verify Program described in section 403(a) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a
note) before such date, as well as by other employers seeking voluntary early
compliance.

(5)

Copying of
documentation permitted

Notwithstanding any other provision of
law, the person or entity may copy a document presented by an individual
pursuant to this subsection and may retain the copy, but only (except as
otherwise permitted under law) for the purpose of complying with the
requirements of this subsection.

(6)

Limitation on
use of forms

A form designated or established by the Secretary of
Homeland Security under this subsection and any information contained in or
appended to such form, may not be used for purposes other than for enforcement
of this Act and any other provision of Federal criminal law.

(7)

Good faith
compliance

(A)

In
general

Except as otherwise provided in this subsection, a person
or entity is considered to have complied with a requirement of this subsection
notwithstanding a technical or procedural failure to meet such requirement if
there was a good faith attempt to comply with the requirement.

(B)

Exception if
failure to correct after notice

Subparagraph (A) shall not apply
if—

(i)

the failure is not
de minimus;

(ii)

the Secretary of
Homeland Security has explained to the person or entity the basis for the
failure and why it is not de minimus;

(iii)

the person or
entity has been provided a period of not less than 30 calendar days (beginning
after the date of the explanation) within which to correct the failure;
and

(iv)

the person or
entity has not corrected the failure voluntarily within such period.

(C)

Exception for
pattern or practice violators

Subparagraph (A) shall not apply to
a person or entity that has or is engaging in a pattern or practice of
violations of subsection (a)(1)(A) or
(a)(2).

.

3.

Employment
eligibility verification system

Section 274A(d) of the
Immigration and Nationality Act (8
U.S.C. 1324a(d)) is amended to read as follows:

(d)

Employment
eligibility verification system

(1)

In
general

Patterned on the employment eligibility confirmation
system established under section 404 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (8 U.S.C. 1324a note), the Secretary of
Homeland Security shall establish and administer a verification system through
which the Secretary (or a designee of the Secretary, which may be a
nongovernmental entity)—

(A)

responds to
inquiries made by persons at any time through a toll-free telephone line and
other toll-free electronic media concerning an individual’s identity and
whether the individual is authorized to be employed; and

(B)

maintains records
of the inquiries that were made, of verifications provided (or not provided),
and of the codes provided to inquirers as evidence of their compliance with
their obligations under this section.

(2)

Initial
response

The verification system shall provide verification or a
tentative nonverification of an individual’s identity and employment
eligibility within 3 working days of the initial inquiry. If providing
verification or tentative nonverification, the verification system shall
provide an appropriate code indicating such verification or such
nonverification.

(3)

Secondary
verification process in case of tentative nonverification

In
cases of tentative nonverification, the Secretary shall specify, in
consultation with the Commissioner of Social Security, an available secondary
verification process to confirm the validity of information provided and to
provide a final verification or nonverification within 10 working days after
the date of the tentative nonverification. When final verification or
nonverification is provided, the verification system shall provide an
appropriate code indicating such verification or nonverification.

(4)

Design and
operation of system

The verification system shall be designed and
operated—

(A)

to maximize its
reliability and ease of use by persons and other entities consistent with
insulating and protecting the privacy and security of the underlying
information;

(B)

to respond to all
inquiries made by such persons and entities on whether individuals are
authorized to be employed and to register all times when such inquiries are not
received;

to have reasonable
safeguards against the system’s resulting in unlawful discriminatory practices
based on national origin or citizenship status, including—

(i)

the selective or
unauthorized use of the system to verify eligibility; or

(ii)

the exclusion of
certain individuals from consideration for employment as a result of a
perceived likelihood that additional verification will be required, beyond what
is required for most job applicants; and

(E)

to limit the
subjects of verification to the following individuals:

(i)

Individuals hired,
referred, or recruited, in accordance with paragraph (1) or (4) of subsection
(b).

(ii)

Employees and
prospective employees, in accordance with paragraph (2), (3), or (4) of
subsection (b).

(iii)

Individuals seeking to confirm their own
employment eligibility on a voluntary basis.

(5)

Responsibilities
of Commissioner of Social Security

As part of the verification
system, the Commissioner of Social Security, in consultation with the Secretary
of Homeland Security (and any designee of the Secretary selected to establish
and administer the verification system), shall establish a reliable, secure
method, which, within the time periods specified under paragraphs (2) and (3),
compares the name and social security account number provided in an inquiry
against such information maintained by the Commissioner in order to validate
(or not validate) the information provided regarding an individual whose
identity and employment eligibility must be confirmed, the correspondence of
the name and number, and whether the individual has presented a social security
account number that is not valid for employment. The Commissioner shall not
disclose or release social security information (other than such verification
or nonverification) except as provided for in this section or section
205(c)(2)(I) of the Social Security
Act.

(6)

Responsibilities
of Secretary of Homeland Security

As part of the verification system, the
Secretary of Homeland Security (in consultation with any designee of the
Secretary selected to establish and administer the verification system), shall
establish a reliable, secure method, which, within the time periods specified
under paragraphs (2) and (3), compares the name and alien identification or
authorization number which are provided in an inquiry against such information
maintained by the Secretary in order to validate (or not validate) the
information provided, the correspondence of the name and number, and whether
the alien is authorized to be employed in the United States.

(7)

Offenses

(A)

In
general

Any person or entity
that, in making an inquiry under subsection (b)(1)(C)(i)(II), provides to the
verification system a social security account number or an identification or
authorization number established by the Secretary of Homeland Security that
belongs to a person other than the individual whose identity and employment
authorization are being verified, knowing that the number does not belong to
the individual whose identity and employment authorization are being verified,
shall be fined under title 18, United States Code, imprisoned not less than 1
year and not more than 15 years, or both. If the person or entity, in making an
inquiry under subsection (b)(1)(C)(i)(II), during and in relation to any felony
violation enumerated in section 1028A(c) of title 18, United States Code,
provides to the verification system a social security account number or an
identification or authorization number established by the Secretary of Homeland
Security that belongs to a person other than the individual whose identity and
employment authorization are being verified, knowing that the number does not
belong to the individual whose identity and work authorization are being
verified, in addition to the punishment provided for such felony, shall be
fined under title 18, United States Code, imprisoned for a term of 2 years, or
both.

(B)

Consecutive
sentence

Notwithstanding any other provision of law—

(i)

a
court shall not place on probation any person or entity convicted of a
violation of this paragraph;

(ii)

except as
provided in clause (iv), no term of imprisonment imposed on a person or entity
under this section shall run concurrently with any other term of imprisonment
imposed on the person or entity under any other provision of law, including any
term of imprisonment imposed for the felony enumerated in section 1028A(c) of
title 18, United States Code, during which the violation of this paragraph
occurred;

(iii)

in determining
any term of imprisonment to be imposed for the felony enumerated in section
1028A(c) of title 18, United States Code, during which the violation of this
section occurred, a court shall not in any way reduce the term to be imposed
for such crime so as to compensate for, or otherwise take into account, any
separate term of imprisonment imposed or to be imposed for a violation of this
paragraph; and

(iv)

a
term of imprisonment imposed on a person or entity for a violation of this
paragraph may, in the discretion of the court, run concurrently, in whole or in
part, only with another term of imprisonment that is imposed by the court at
the same time on that person or entity for an additional violation of this
paragraph, except that such discretion shall be exercised in accordance with
any applicable guidelines and policy statements issued by the United States
Sentencing Commission pursuant to section 994 of title 28, United States
Code.

(8)

Updating
information

The Commissioner of Social Security and the Secretary
of Homeland Security shall update their information in a manner that promotes
the maximum accuracy and shall provide a process for the prompt correction of
erroneous information, including instances in which it is brought to their
attention in the secondary verification process described in paragraph
(3).

(9)

Limitation on
use of the verification system and any related systems

(A)

In
general

Notwithstanding any other provision of law, nothing in
this section shall be construed to permit or allow any department, bureau, or
other agency of the United States Government to utilize any information, data
base, or other records assembled under this subsection for any other purpose
other than as provided for under this section.

(B)

No national
identification card

Nothing in this section shall be construed to
authorize, directly or indirectly, the issuance or use of national
identification cards or the establishment of a national identification
card.

(10)

Remedies

If an individual alleges that the
individual would not have been dismissed from a job but for an error of the
verification mechanism, the individual may seek compensation only through the
mechanism of the Federal Tort Claims Act, and injunctive relief to correct such
error. No class action may be brought under this
paragraph.

.

4.

Recruitment,
referral, and continuation of employment

(a)

Additional
changes to rules for recruitment, referral, and continuation of
employment

Section 274A(a) of the Immigration and Nationality Act
(8 U.S.C. 1324a(a)) is amended—

(1)

in paragraph
(1)(A), by striking for a fee;

(2)

in paragraph (1),
by amending subparagraph (B) to read as follows:

(B)

to hire, continue
to employ, or to recruit or refer for employment in the United States an
individual without complying with the requirements of subsection
(b).

;

(3)

in paragraph (2),
by striking after hiring an alien for employment in accordance with
paragraph (1), and inserting after complying with paragraph
(1),; and

(4)

in paragraph (3), by striking
hiring, and inserting hiring, employing, each
place it appears.

(b)

Definition

Section 274A(h) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)) is amended by adding at the end the
following:

(4)

Definition of
recruit or refer

As used in
this section, the term refer means the act of sending or directing
a person or transmitting documentation or information to another, directly or
indirectly, with the intent of obtaining employment in the United States for
such person. Only persons or entities referring for remuneration (whether on a
retainer or contingency basis) are included in the definition, except that
union hiring halls that refer union members or nonunion individuals who pay
union membership dues are included in the definition whether or not they
receive remuneration, as are labor service entities or labor service agencies,
whether public, private, for-profit, or nonprofit, that refer, dispatch, or
otherwise facilitate the hiring of laborers for any period of time by a third
party. As used in this section the term recruit means the act of
soliciting a person, directly or indirectly, and referring the person to
another with the intent of obtaining employment for that person. Only persons
or entities referring for remuneration (whether on a retainer or contingency
basis) are included in the definition, except that union hiring halls that
refer union members or nonunion individuals who pay union membership dues are
included in this definition whether or not they receive remuneration, as are
labor service entities or labor service agencies, whether public, private,
for-profit, or nonprofit that recruit, dispatch, or otherwise facilitate the
hiring of laborers for any period of time by a third
party.

.

(c)

Effective
date

The amendments made by
this section shall take effect on the date that is 1 year after the date of the
enactment of this Act, except that the amendments made by subsection (a) shall
take effect 6 months after the date of the enactment of this Act insofar as
such amendments relate to continuation of employment.

5.

Good faith
defense

Section 274A(a)(3) of
the Immigration and Nationality Act (8 U.S.C. 1324a(a)(3)) is amended to read
as follows:

(3)

Good faith
defense

(A)

Defense

An employer (or person or entity that
hires, employs, recruits or refers for fee, or is otherwise obligated to comply
with this section) who establishes that it has complied in good faith with the
requirements of subsection (b)—

(i)

shall not be
liable to a job applicant, an employee, the Federal Government, or a State or
local government, under Federal, State, or local criminal or civil law for any
employment-related action taken with respect to a job applicant or employee in
good-faith reliance on information provided through the system established
under subsection (d); and

(ii)

has established
compliance with its obligations under subparagraphs (A) and (B) of paragraph
(1) and subsection (b) absent a showing by the Secretary of Homeland Security,
by clear and convincing evidence, that the employer had knowledge that an
employee is an unauthorized alien.

(B)

Failure to seek
and obtain verification

Subject to the effective dates and other
deadlines applicable under subsection (b), in the case of a person or entity in
the United States that hires, or continues to employ, an individual, or
recruits or refers an individual for employment, the following requirements
apply:

(i)

Failure to seek
verification

(I)

In
general

If the person or entity has not made an inquiry, under
the mechanism established under subsection (d) and in accordance with the
timeframes established under subsection (b), seeking verification of the
identity and work eligibility of the individual, the defense under subparagraph
(A) shall not be considered to apply with respect to any employment, except as
provided in subclause (II).

(II)

Special rule
for failure of verification mechanism

If such a person or entity
in good faith attempts to make an inquiry in order to qualify for the defense
under subparagraph (A) and the verification mechanism has registered that not
all inquiries were responded to during the relevant time, the person or entity
can make an inquiry until the end of the first subsequent working day in which
the verification mechanism registers no nonresponses and qualify for such
defense.

(ii)

Failure to
obtain verification

If the person or entity has made the inquiry
described in clause (i)(I) but has not received an appropriate verification of
such identity and work eligibility under such mechanism within the time period
specified under subsection (d)(2) after the time the verification inquiry was
received, the defense under subparagraph (A) shall not be considered to apply
with respect to any employment after the end of such time
period.

.

6.

Preemption

Section 274A(h)(2) of the Immigration and
Nationality Act (8 U.S.C. 1324a(h)(2)) is amended to read as follows:

(2)

Preemption

The provisions of this section preempt any
State or local law, ordinance, policy, or rule, including any criminal or civil
fine or penalty structure, insofar as they may now or hereafter relate to the
hiring, continued employment, or status verification for employment eligibility
purposes, of unauthorized aliens. A State, locality, municipality, or political
subdivision may exercise its authority over business licensing and similar laws
as a penalty for failure to use the verification system described in subsection
(d) to verify employment eligibility when and as required under subsection
(b).

.

7.

Repeal

(a)

In
general

Subtitle A of title
IV of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1234a note) is repealed.

(b)

References

Any reference in any Federal law, Executive
order, rule, regulation, or delegation of authority, or any document of, or
pertaining to, the Department of Homeland Security or the Social Security
Administration, to the employment eligibility confirmation system established
under section 404 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1324a note) is deemed to refer to the
employment eligibility confirmation system established under section 274A(d) of
the Immigration and Nationality Act, as amended by section 3 of this
Act.

(c)

Effective
date

This section shall take effect on the date that is 36 months
after the date of the enactment of this Act.

8.

Penalties

Section 274A of the
Immigration and Nationality Act (8
U.S.C. 1324a) is amended—

(1)

in subsection
(e)(4)—

(A)

in subparagraph
(A), in the matter before clause (i), by inserting , subject to
paragraph (10), after in an amount;

(B)

in subparagraph
(A)(i), by striking not less than $250 and not more than $2,000
and inserting not less than $2,500 and not more than
$5,000;

(C)

in subparagraph
(A)(ii), by striking not less than $2,000 and not more than
$5,000 and inserting not less than $5,000 and not more than
$10,000;

(D)

in subparagraph
(A)(iii), by striking not less than $3,000 and not more than
$10,000 and inserting not less than $10,000 and not more than
$25,000; and

(E)

by amending
subparagraph (B) to read as follows:

(B)

may require the
person or entity to take such other remedial action as is
appropriate.

;

(2)

in subsection
(e)(5)—

(A)

in the paragraph
heading, strike paperwork;

(B)

by inserting
, subject to paragraphs (10) through (12), after in an
amount;

(C)

by striking
$100 and inserting $1,000;

(D)

by striking
$1,000 and inserting $25,000;

(E)

by adding at the
end the following: Failure by a person or entity to utilize the
employment eligibility verification system as required by law, or providing
information to the system that the person or entity knows or reasonably
believes to be false, shall be treated as a violation of subsection
(a)(1)(A).;

(3)

by adding at the
end of subsection (e) the following:

(10)

Exemption from
penalty for good faith violation

In the case of imposition of a
civil penalty under paragraph (4)(A) with respect to a violation of subsection
(a)(1)(A) or (a)(2) for hiring or continuation of employment or recruitment or
referral by person or entity and in the case of imposition of a civil penalty
under paragraph (5) for a violation of subsection (a)(1)(B) for hiring or
recruitment or referral by a person or entity, the penalty otherwise imposed
may be waived or reduced if the violator establishes that the violator acted in
good faith.

(11)

Authority to
debar employers for certain violations

(A)

In
general

If a person or entity
is determined by the Secretary of Homeland Security to be a repeat violator of
paragraph (1)(A) or (2) of subsection (a), or is convicted of a crime under
this section, such person or entity may be considered for debarment from the
receipt of Federal contracts, grants, or cooperative agreements in accordance
with the debarment standards and pursuant to the debarment procedures set forth
in the Federal Acquisition Regulation.

(B)

Does not have
contract, grant, agreement

If
the Secretary of Homeland Security or the Attorney General wishes to have a
person or entity considered for debarment in accordance with this paragraph,
and such an person or entity does not hold a Federal contract, grant or
cooperative agreement, the Secretary or Attorney General shall refer the matter
to the Administrator of General Services to determine whether to list the
person or entity on the List of Parties Excluded from Federal Procurement, and
if so, for what duration and under what scope.

(C)

Has contract,
grant, agreement

If the
Secretary of Homeland Security or the Attorney General wishes to have a person
or entity considered for debarment in accordance with this paragraph, and such
person or entity holds a Federal contract, grant or cooperative agreement, the
Secretary or Attorney General shall advise all agencies or departments holding
a contract, grant, or cooperative agreement with the person or entity of the
Government’s interest in having the person or entity considered for debarment,
and after soliciting and considering the views of all such agencies and
departments, the Secretary or Attorney General may refer the matter to any
appropriate lead agency to determine whether to list the person or entity on
the List of Parties Excluded from Federal Procurement, and if so, for what
duration and under what scope.

(D)

Review

Any decision to debar a person or entity
under in accordance with this paragraph shall be reviewable pursuant to part
9.4 of the Federal Acquisition
Regulation.

;

(4)

by amending
paragraph (1) of subsection (f) to read as follows:

(1)

Criminal
penalty

Any person or entity which engages in a pattern or
practice of violations of subsection (a)(1) or (2) shall be fined not more than
$15,000 for each unauthorized alien with respect to which such a violation
occurs, imprisoned for not less than one year and not more than 10 years, or
both, notwithstanding the provisions of any other Federal law relating to fine
levels.

;
and

(5)

in subsection
(f)(2), by striking Attorney General each place it appears and
inserting Secretary of Homeland Security.

9.

Protection of
Social Security Administration programs

(a)

Funding under
agreement

Effective for fiscal years beginning on or after
October 1, 2012, the Commissioner of Social Security and the Secretary of
Homeland Security shall enter into and maintain an agreement which
shall—

(1)

provide funds to
the Commissioner for the full costs of the responsibilities of the Commissioner
under section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by section 3 of this Act, including (but not limited
to)—

(A)

acquiring,
installing, and maintaining technological equipment and systems necessary for
the fulfillment of the responsibilities of the Commissioner under such section
274A(d), but only that portion of such costs that are attributable exclusively
to such responsibilities; and

(B)

responding to
individuals who contest a tentative nonconfirmation provided by the employment
eligibility verification system established under such section;

(2)

provide such funds
quarterly in advance of the applicable quarter based on estimating methodology
agreed to by the Commissioner and the Secretary (except in such instances where
the delayed enactment of an annual appropriation may preclude such quarterly
payments); and

(3)

require an annual
accounting and reconciliation of the actual costs incurred and the funds
provided under the agreement, which shall be reviewed by the Office of
Inspector General of the Social Security Administration and the Department of
Homeland Security.

(b)

Continuation of
employment verification in absence of timely agreement

In any case in which the agreement required
under subsection (a) for any fiscal year beginning on or after October 1, 2012,
has not been reached as of October 1 of such fiscal year, the latest agreement
between the Commissioner and the Secretary of Homeland Security providing for
funding to cover the costs of the responsibilities of the Commissioner under
section 274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d))
shall be deemed in effect on an interim basis for such fiscal year until such
time as an agreement required under subsection (a) is subsequently reached,
except that the terms of such interim agreement shall be modified by the
Director of the Office of Management and Budget to adjust for inflation and any
increase or decrease in the volume of requests under the employment eligibility
verification system. In any case in which an interim agreement applies for any
fiscal year under this subsection, the Commissioner and the Secretary shall,
not later than October 1 of such fiscal year, notify the Committee on Ways and
Means, the Committee on the Judiciary, and the Committee on Appropriations of
the House of Representatives and the Committee on Finance, the Committee on the
Judiciary, and the Committee on Appropriations of the Senate of the failure to
reach the agreement required under subsection (a) for such fiscal year. Until
such time as the agreement required under subsection (a) has been reached for
such fiscal year, the Commissioner and the Secretary shall, not later than the
end of each 90-day period after October 1 of such fiscal year, notify such
Committees of the status of negotiations between the Commissioner and the
Secretary in order to reach such an agreement.

10.

Fraud
prevention

(a)

Blocking misused
social security account numbers

The Secretary of Homeland Security and the
Commissioner of Social Security shall establish a program in which social
security account numbers that have been identified to be subject to unusual
multiple use in the employment eligibility verification system established
under section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by section 3 of this Act, or that are otherwise suspected
or determined to have been compromised by identity fraud or other misuse, shall
be blocked from use for such system purposes unless the individual using such
number is able to establish, through secure and fair additional security
procedures, that the individual is the legitimate holder of the number.

(b)

Allowing
suspension of use of certain social security account numbers

The Secretary of Homeland Security, in
consultation with the Commissioner of Social Security, shall establish a
program which shall provide a reliable, secure method by which victims of
identity fraud and other individuals may suspend or limit the use of their
social security account number or other identifying information for purposes of
the employment eligibility verification system established under section
274A(d) of the Immigration and Nationality Act (8 U.S.C. 1324a(d)), as amended
by section 3 of this Act. The Secretary may implement the program on a limited
pilot program basis before making it fully available to all individuals.

(c)

Blocking use of
certain social security account numbers

(1)

In
general

The Secretary of
Homeland Security shall establish a program in which the social security
account numbers of an alien described in paragraph (2) shall be blocked from
use for purposes of the employment eligibility verification system established
under section 274A(d) of the Immigration and Nationality Act (8 U.S.C.
1324a(d)), as amended by section 3 of this Act, unless the alien is
subsequently admitted lawfully to the United States in, or the Secretary has
subsequently changed the alien’s status lawfully to, a status that permits
employment as a condition of the alien’s admission or subsequent change of
status, or the Secretary has subsequently granted work authorization lawfully
to the alien.

(2)

Aliens
described

An alien is
described in this paragraph if the alien—

(A)

has a final order
of removal from the United States;

(B)

voluntarily
departs the United States;

(C)

is voluntarily
returned; or

(D)

is a nonimmigrant described in section
101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) whose
work authorization has expired and who is not the subject of an application or
petition that would authorize the alien’s employment.

11.

Biometric
employment eligibility verification pilot program

(a)

In
general

Not later than 18 months after the date of the enactment
of the Legal Workforce Act, the Secretary of Homeland Security, after
consultation with the Commissioner of Social Security and the Director of the
National Institute of Standards and Technology, shall establish by regulation a
Biometric Employment Eligibility Verification pilot program (the
Biometric Pilot). The purpose of the Biometric Pilot shall be to
provide for identity authentication and employment eligibility verification
with respect to enrolled new employees which shall be available to subject
employers who elect to participate in the Biometric Pilot. Any subject employer
may cancel the employer’s participation in the Biometric Pilot after one year
after electing to participate without prejudice to future participation.

(b)

Minimum
requirements

In accordance with the regulations prescribed by the
Secretary pursuant to subsection (a), the following shall apply:

The Biometric Pilot shall utilize the services of
private sector entities (enrollment providers), with appropriate
expertise, which shall be subject to initial and periodic certification by the
Secretary, to provide—

(A)

enrollment under
the Biometric Pilot of new employees by means of identity authentication in a
manner that provides a high level of certainty as to their true identities,
using immigration and identifying information maintained by the Social Security
Administration and the Department of Homeland Security, review of identity
documents, and background screening verification techniques using publicly
available information;

(B)

protection of the
authenticated information through biometric technology; and

(C)

verification of
employment eligibility of such new employees.

(2)

Database
management

The Biometric Pilot shall provide for databases of
identifying information which may be retained by the enrollment providers.
Databases controlled by the Commissioner and Secretary of Homeland Security
shall be maintained in a manner to capture new entries and new status
information in a timely manner and to interact with the private enrollment
databases to keep employment authorization status and identifying information
current on a daily basis. The information maintained in such databases shall be
subject to the requirements established pursuant to subsection (e), except
that—

(A)

use of the data
shall be limited to obtaining employment eligibility verification only, unless
the new employee consents to use the data for other purposes, as provided in
regulations prescribed by the Secretary; and

(B)

other identifying
traits of the new employees shall be stored through an encoding process that
keeps their accurate names, dates of birth, social security numbers, and
immigration identification numbers (if any) separate, except during electronic
verification.

(3)

Accessibility to
employers

Availability of data maintained in the Biometric Pilot
shall be managed so that any subject employer who participates in the Biometric
Pilot can obtain verification with respect to any new employee enrolled with
any enrollment provider serving in the Biometric Pilot.

(4)

Limitations
relating to biometric data

Any biometric data maintained in the
Biometric Pilot relating to any new employee shall be—

(A)

encrypted and
segregated from identifying information relating to the new employee,
and

(B)

maintained and
linked to identifying information relating to the new employee only by consent
of the new employee for the purpose of verifying employment eligibility or
approved correction processes or for other purposes specifically authorized by
the employee as provided in regulations prescribed by the Secretary.

(5)

Accuracy of
association of data with enrolled new employees

The enrollment
process under the Biometric Pilot shall be managed, in the case of each new
employee enrolled in the Biometric Pilot, so as to result in the accurate
association of data consisting of name, date of birth, social security number,
and immigration identification number (if any) with the established identity of
the new employee.

(6)

Limitations on
accessibility of information

Data stored in Biometric Pilot
relating to any enrolled new employee shall not be accessible to any person
other than those operating the Biometric Pilot and for the sole purpose of
identity authentication and employment eligibility verification in connection
with the new employee, except—

(A)

by the written
consent of the new employee given specifically for each instance or category of
disclosure for any other purpose as provided in regulations prescribed by the
Secretary; or

(B)

in response to a
warrant issued by a judicial authority of competent jurisdiction in a criminal
proceeding.

(7)

Public
education

The Secretary shall conduct a program of ongoing,
comprehensive public education campaign relating to the Biometric Pilot.

(c)

Employer
responsibilities

In accordance with the regulations prescribed by
the Secretary pursuant to subsection (a), the following shall apply:

(1)

Use limited to
enrolled new employees

Use of the Biometric Pilot by subject
employers participating in the Biometric Pilot shall be limited to use in
connection with the hiring of new employees occurring after their enrollment in
the Biometric Pilot.

(2)

Use for limited
period

Use of the Biometric Pilot by any subject employer
participating in the Biometric Pilot in connection with any new employee may
occur only during the period beginning on the date of hire and ending at the
end of the third business day after the employee has reported for duty. Use of
the Biometric Pilot with respect to recruitment or referral for a fee may occur
only until the first day of such recruitment or referral.

(3)

Responsibility
of employers to enroll new employees

In connection with the
hiring by any subject employer of a new employee who has not been previously
enrolled in the Biometric Pilot, enrollment of the new employee shall occur
only upon application by the subject employer submitted to an enrollment
provider, together with payment of any costs associated with the
enrollment.

(4)

Limitations on
selective use

No subject employer may use the Biometric Pilot
selectively to verify any class, level, or category of new employees. Nothing
in this subparagraph shall be construed to preclude subject employers from
utilizing the Biometric Pilot in connection with hiring at selected employment
locations without implementing such usage at all locations of the
employer.

(d)

Employee
protections

In accordance with the regulations prescribed by the
Secretary pursuant to subsection (a), the following shall apply:

(1)

Access for
employees to correct and update information

Employees enrolled in
the Biometric Pilot shall be provided access to the Biometric Pilot to verify
information relating to their employment authorization and readily available
processes to correct and update their enrollment information and information
relating to employment authorization.

(2)

Right to cancel
enrollment

Each employee enrolled in the Biometric Pilot shall
have the right to cancel such employee’s enrollment at any time after the
identity authentication and employment eligibility verification processes are
completed by the subject employer described in subsection (c)(3). Such
cancellation shall remove from the Biometric Pilot all identifying information
and biometrics in connection with such employee without prejudice to future
enrollments.

(e)

Maintenance of
security and confidentiality of information

(1)

In
general

Every person who is a subject employer participating in
the Biometric Pilot or an officer or contractor of such a subject employer and
who has access to any information obtained at any time from the Department of
Homeland Security shall maintain the security and confidentiality of such
information. No such person may disclose any file, record, report, paper, or
other item containing information so obtained at any time by any such person
from the Secretary or from any officer or employee of the Department of
Homeland Security except as the Secretary may by regulations prescribe or as
otherwise provided by Federal law.

(2)

Penalty for
disclosure in violation of subparagraph (a)

Any person described
in paragraph (1) who knowingly violates paragraph (1) shall be guilty of a
felony and, upon conviction thereof, shall be punished by a fine not exceeding
$10,000 for each occurrence of a violation, or by imprisonment not exceeding 5
years, or both.

(3)

Penalty for
knowing disclosure of fraudulent information

Any person who
willfully and knowingly accesses, discloses, or uses any information which such
person purports to be information obtained as described in paragraph (1)
knowing such information to be false shall be guilty of a felony and, upon
conviction thereof, shall be punished by a fine not exceeding $10,000 for each
occurrence of a violation, or by imprisonment not exceeding 5 years, or
both.

(4)

Restitution

(A)

In
general

Any Federal court, when sentencing a defendant convicted
of an offense under this paragraph, may order, in addition to or in lieu of any
other penalty authorized by law, that the defendant make restitution to the
victims of such offense specified in subparagraph (B). Sections 3612, 3663, and
3664 of title 18, United States Code, shall apply with respect to the issuance
and enforcement of orders of restitution to victims of such offense under this
subparagraph. If the court does not order restitution, or orders only partial
restitution, under this subsection, the court shall state on the record the
reasons therefor.

(B)

Victims
specified

The victims specified in this clause are the
following:

(i)

Any
individual who suffers a financial loss as a result of the disclosure described
in paragraph (2) or (3).

(ii)

The
Secretary of Homeland Security, to the extent that the disclosure described in
paragraph (2) or (3) results in the inappropriate payment of a benefit by the
Commissioner of Social Security.

(C)

Deposit in the
trust funds of amounts paid as restitution to the
commissioner

Funds paid to the Commissioner as restitution
pursuant to a court order under this subparagraph shall be deposited in the
Federal Old-Age and Survivors Insurance Trust Fund or the Federal Disability
Insurance Trust Fund, as appropriate.